[Federal Register Volume 72, Number 170 (Tuesday, September 4, 2007)]
[Rules and Regulations]
[Pages 50643-50644]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-17457]



 ========================================================================
 Rules and Regulations
                                                 Federal Register
 ________________________________________________________________________
 
 This section of the FEDERAL REGISTER contains regulatory documents 
 having general applicability and legal effect, most of which are keyed 
 to and codified in the Code of Federal Regulations, which is published 
 under 50 titles pursuant to 44 U.S.C. 1510.
 
 The Code of Federal Regulations is sold by the Superintendent of Documents. 
 Prices of new books are listed in the first FEDERAL REGISTER issue of each 
 week.
 
 ========================================================================
 

  Federal Register / Vol. 72, No. 170 / Tuesday, September 4, 2007 / 
Rules and Regulations  

[[Page 50643]]



GOVERNMENT ACCOUNTABILITY OFFICE

4 CFR Part 81


Public Availability of Government Accountability Office Records

AGENCY: Government Accountability Office.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: GAO amends its records rule to clarify and broaden the 
existing exemption regarding the disclosure of congressional 
correspondence and to add a new provision regarding the handling of 
requests for records of interviews created by GAO in connection with 
its work. Specifically, the revision to the congressional 
correspondence exemption enables GAO to release or withhold 
congressional correspondence without prior congressional authorization. 
The new provision ensures that an agency from which an interview was 
obtained is notified of a request for the record of interview and 
receives an opportunity to advise GAO whether the record of interview 
or portions thereof should be exempt from disclosure. The new provision 
will enhance the open, frank, and honest exchange of information from 
other agencies, nonfederal organizations, and individuals to GAO during 
the course of a GAO audit, evaluation, or investigation.

EFFECTIVE DATE: October 4, 2007.

FOR FURTHER INFORMATION CONTACT: John A. Bielec, Deputy Assistant 
General Counsel; telephone 202-512-2846; e-mail [email protected].

SUPPLEMENTARY INFORMATION: On September 18, 2006, GAO published a 
proposed rule in the Federal Register proposing two revisions to 4 CFR 
Part 81.6 and requesting comments (71 FR 54597). Even though, as a 
legislative branch agency, GAO is not subject to the Administrative 
Procedures Act and was not required by law to seek comments before 
issuing a final rule, GAO requested comments concerning its proposed 
revisions for a 45-day comment period ending November 2, 2006.
    Two comments were received during the comment period. The first 
commenter objected to any change that would lessen the transparency of 
governmental actions. The second commenter opposed the creation of the 
additional exemption regarding records of interviews on the grounds 
that the new exemption is overly broad and could appear arbitrary and 
capricious. After careful review and consideration of the comments, GAO 
decided that no changes were needed to the proposed revision regarding 
congressional correspondence. With respect to the new provision in 
Sec.  81.6 concerning records of interviews, GAO took into account the 
comment regarding the regulation appearing overly broad and added 
language to clarify the procedures to be followed when a request for 
records of interviews is made. Moreover, for the sake of clarity and 
transparency, GAO determined that this new provision should be placed 
in 4 CFR 81.5 rather than in Sec.  81.6 since Sec.  81.5 specifically 
relates to records obtained or created in the course of GAO's audit, 
evaluation, or investigative work.
    As previously stated in the proposed rule, the revision to Sec.  
81.6(a) simply clarifies that GAO is not required to obtain 
congressional authorization prior to the release or withholding of 
congressional correspondence from its records. This revision ensures 
consistency in the handling of records that contain information 
regarding the communications between GAO and congressional members. It 
will not result in additional restrictions on the availability of such 
records.
    The amendment to Sec.  81.5 ensures that an agency from which an 
interview was obtained is given notice of the request for the record of 
interview and given an opportunity to advise GAO whether the record of 
interview or portions thereof should be exempt from disclosure. While a 
record of interview is a GAO-created record, the information contained 
therein comes directly from another agency. The agency from which an 
interview was obtained is in the best position to know whether 
particular information contained in a record of interview may be 
sensitive or privileged, and therefore, whether it should be protected 
from public disclosure.
    Although the amendment to Sec.  81.5 provides an opportunity for 
input from another agency, the sole discretion regarding the release of 
records of interviews or portions thereof remains with GAO's Chief 
Quality Officer. In deciding whether to release a record of interview, 
the new provision makes clear that the Chief Quality Officer will 
consider the views of the agency from which the interview was obtained 
and the exemptions contained in Sec.  81.6 or any other law or 
regulation.
    While the amendment may restrict the availability of certain 
records of interviews, as discussed in the proposed rule, the success 
of GAO's work requires that employees of other agencies and 
organizations participate in interviews and provide open, frank, and 
honest opinions during these interviews. Without the amendment to Sec.  
81.5, GAO's ability to conduct necessary interviews could be 
diminished, which could negatively influence the quality of work GAO 
performs for Congress on behalf of the American people.

List of Subjects in 4 CFR Part 81

    Administrative practice and procedure, Archives and records, 
Freedom of information.

0
For the reasons stated in the preamble, amend part 81 of title 4 of the 
Code of Federal Regulations as follows:

PART 81--PUBLIC AVAILABILITY OF GOVERNMENT ACCOUNTABILITY OFFICE 
RECORDS

0
1. The authority citation for part 81 continues to read:

    Authority: 31 U.S.C. 711.


0
2. In Sec.  81.5, revise the section heading, redesignate paragraph (b) 
as paragraph (c), and add new paragraph (b) to read as follows:


Sec.  81.5  Records originating outside GAO, records of interviews, or 
records involving work in progress.

* * * * *
    (b) It is the policy of GAO that prior to the release of a record 
of interview created by GAO in connection with an audit, evaluation, or 
investigation of a program, activity, or funding of a

[[Page 50644]]

government entity, GAO will notify the agency from which an interview 
was obtained of the request. GAO will provide that agency with a 
reasonable opportunity to indicate whether the record of interview or 
portions thereof should be exempt from disclosure and the reason(s) for 
the exemption. The public disclosure of a record of interview remains 
within the discretion of GAO's Chief Quality Officer, but GAO will 
consider the views of the agency and the exemptions provided for under 
Sec.  81.6 or any other law or regulation in deciding whether to 
release all or portions of a record of interview.
* * * * *

0
3. In Sec.  81.6, revise paragraph (a) to read as follows:


Sec.  81.6  Records which may be exempt from disclosure.

* * * * *
    (a) Records relating to work performed in response to a 
congressional request (unless authorized by the congressional 
requester), congressional correspondence, and congressional contact 
memoranda.
* * * * *

    Dated: August 27, 2007.
Gary L. Kepplinger,
General Counsel, Government Accountability Office.
 [FR Doc. E7-17457 Filed 8-31-07; 8:45 am]
BILLING CODE 1610-02-P